Citation Nr: 0117035
Decision Date: 06/25/01 Archive Date: 07/03/01
DOCKET NO. 00-21 238 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to a compensable evaluation for prostatitis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran served on active duty from February 1953 to
February 1955.
This matter comes before the Board of Veterans' Appeals
(Board) of the Department of Veterans Affairs (VA) on appeal
from a rating determination by the Roanoke, Virginia,
Regional Office (RO).
FINDING OF FACT
There is no medical evidence of current symptoms of
prostatitis, or of any current genitourinary symptoms that
are not controlled with medication.
CONCLUSION OF LAW
The criteria for a compensable rating for prostatitis have
not been met. Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000) 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.115a,
4.115b, Diagnostic Code 7527 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
In a July 1957 rating action, service connection was granted
for chronic prostatitis and a noncompensable evaluation was
assigned.
The veteran filed a claim for an increase in January 1999.
In response to information provided by the veteran, the RO
subsequently obtained private medical treatment records dated
from September 1998 to April 2000 which primarily show
evaluation and treatment for complaints of leg, hip and back
pain. Specifically as regards genitourinary problems,
clinical data from the Belmont Family Practice shows that in
January 2000, the veteran was evaluated for complaints of
urinary hesitancy, frequency and polyuria. On examination
the prostate was enlarged, boggy and tender. The veteran's
medication (Hytrin) was increased.
On VA examination in April 2000, the examiner noted the
veteran's history of chronic prostatitis, which was first
diagnosed in 1953 while in service. The veteran reported
problems since then and stated that he had some exacerbations
in the past but was never on an antibiotic. The veteran also
reported that his problem started getting worse over the last
two years. He complained of increased hesitancy, urgency and
frequency of urination especially at night. He also
complained of dribbling and erectile dysfunction. The
veteran denied dysuria, hematuria or discharge. The veteran
stated that his symptoms had improved since he was started on
Hytrin. He denied ever being on antibiotics since the
diagnosis of chronic prostatitis in 1953 but stated that he
has had regular prostate examinations done by his family
doctor. The veteran denied any episodes of pain in the
testicles or any testicular masses. He denied prostate
biopsy since discharge from service. The examiner noted the
veteran was also had benign prostatic hypertrophy and
prostatic enlargement diagnosed two years ago per the
veteran's history
Genitourinary examination revealed testicles were well
descended. There were no masses and no penile lesions. The
prostate was 2+ and there was no expression of any penile
discharge on prostatic massage. The prostate was firm and
nontender and there were no nodules. Stool was guaiac
negative and neurological examination was intact. The
veteran also had PSA (prostate-specific antigen) drawn and
PSA 2 was 1.62, which was within normal limits. The clinical
impression was history of chronic prostatitis, since 1953 and
benign prostatitic hypertrophy, symptoms better on Hytrin.
The examiner concluded that he doubted the veteran had a true
exacerbation of prostatitis since 1953 as he stated that he
has never been on any antibiotic and the symptoms that he was
having currently were of benign prostatic hypertrophy as they
were well controlled with Hytrin. The examiner further
concluded that the veteran did not have any evidence of
prostatitis on examination.
Analysis
Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), which contains revised notice provisions, and
additional requirements pertaining to VA's duty to assist.
See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, §§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (to be codified
as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). The
new law applies to all claims filed on or after the date of
the law's enactment, as well as to claims filed before the
date of the law's enactment, and not yet finally adjudicated
as of that date. See Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000); VAOPGCPREC 11-2000 (2000).
In this case, the RO has not yet had an opportunity to
consider the claim in appeal in light of the above-noted
change in the law. Nonetheless, the Board determines that
the law does not preclude the Board from proceeding to an
adjudication of the veteran's claim without first remanding
the claim to the RO because the requirements of the new law
have essentially been satisfied. In this regard, the Board
notes that by the statement of the case furnished the
veteran, the RO has notified the veteran of the information
and evidence necessary to substantiate his claim. Pertinent
medical evidence has been associated with the record, and the
veteran has undergone medical evaluation in connection with
the claim. Moreover, the veteran has had the opportunity to
testify at a hearing, and there is no indication that any
additional pertinent evidence exists that can be obtained on
the issue here in question. Adjudication of this appeal,
without referral to the RO for initial consideration under
the new law, poses no risk of prejudice to the veteran. See,
e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Thus,
the claim is ready to be reviewed on the merits.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4. When a question arises as to
which of two ratings apply under a particular diagnostic
code, the higher evaluation is assigned if the disability
more closely approximates the criteria for the higher rating.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3. The veteran's entire
history is reviewed when making disability evaluations. See
generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App.
589 (1995). With respect to claims for increased rating,
however, the current level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The RO has assigned a noncompensable evaluation for
prostatitis in accordance with the criteria set forth in the
VA Schedule for Rating Disabilities, 38 C.F.R. § 4.115b, Code
7527. Diagnostic Code 7527 provides for the evaluation of
prostate gland injuries, infections, hypertrophy and
postoperative residuals. These disabilities are to be rated
as voiding dysfunction or urinary tract infection, whichever
is predominant.
Pursuant to 38 C.F.R. § 4.115a, voiding dysfunction is rated
on the basis of as urine leakage, urinary frequency, or
obstructed voiding. Under urinary frequency, a 10 percent
rating is warranted upon a showing of a daytime voiding
interval between two and three hours, or; awakening to void
two times per night. A 20 percent rating is warranted upon a
showing of a daytime voiding interval of between one and two
hours or when there is awakening to void three or four times
per night. A 40 percent rating is warranted when the daytime
voiding interval is less than one hour, or there is awakening
to void five or more times per night.
Also pursuant to 38 C.F.R. § 4.115a, urinary tract infection
involving poor renal function is rated as renal dysfunction.
Otherwise, urinary tract infection requiring long-term drug
therapy, 1-2 hospitalizations per year, and/or requiring
intermittent intensive management warrants a 10 percent
evaluation. Recurrent symptomatic infection requiring
drainage/frequent hospitalization (greater than two times per
year) and/or requiring continuous intensive management
warrants a 30 percent evaluation.
The rating schedule authorizes the assignment of a zero
percent (noncompensable) evaluation in every instance in
which the rating schedule does not provide such an evaluation
and the requirement for a compensable evaluation are not met.
38 C.F.R. § 4.31.
This case involves evaluation of the veteran's service-
connected for prostatitis; however, the record does not
reflect medical evidence of any current symptoms of
prostatitis, or any genitourinary symptoms that warrant
assignment of a compensable evaluation either on the basis
voiding dysfunction or urinary tract infection. Recent
medical records reflect only complaints of urinary hesitancy,
frequency and polyuria, and a finding of an enlarged, boggy
and tender prostate. At that time, in January 2000, the
veteran's medication (Hytrin) was increased. Treatment
records reflect no other specific genitourinary complaints
and the subsequent April 2000 examiner found that the
symptoms (which he attributed to benign hypertrophy, not
prostatitis) were then well controlled with medication.
Indeed, while the veteran complained that his problems with
urgency, frequency and dribbling had increased about two
years ago, he also acknowledged that they had improved with
medication. Thus, there are no symptoms upon which to award
a compensable evaluation under either the criteria pertaining
to voiding dysfunction or urinary tract infection.
Specifically as regards the veteran's prostatitis, the April
2000 examiner opined that, based upon the veteran's own
assertions, he doubted that the veteran had had a true
exacerbation of prostatitis since 1953 (notwithstanding the
fact that the veteran indicated that he had had some
exacerbations in the past, but was never placed on an
antibiotic).
The Board acknowledges that the veteran's claims file was not
available to the April 2000 examiner. Nonetheless, the Board
finds that, given the dearth of medical treatment records
post-service, and the fact that the history provided by the
veteran at the time of the examination and considered by the
examiner is consistent with that reflected in the record, the
report of that examination (which reflects not only the
veteran's history, but complaints, clinical findings and
diagnosis) is sufficient for rating purposes.
Under these circumstances, the Board finds that the veteran's
claim for a compensable evaluation for prostatitis must be
denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the veteran's claim, that doctrine is not applicable
in the instant appeal. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be
codified as amended at 38 U.S.C. § 5107(b)); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
A compensable evaluation for prostatitis is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals